Stacy Wayne James v. State

11th Court of Appeals 11th Court of Appeals Eastland, Texas Opinion Stacy Wayne James Appellant Vs. No. 11-00-00172-CR B Appeal from Baylor County State of Texas Appellee The jury convicted appellant of the state jail felony of theft over $1,500 and under $20,000. Appellant elected to have his punishment set by the court. The court assessed his punishment at 18 months confinement. We affirm. In his only point of error on appeal, appellant asserts that his trial counsel Awas ineffective at the punishment stage because he did not plead or prove the appellant=s eligibility for probation.@ Appellant=s trial counsel did not file a pretrial application for community supervision. TEX. CODE CRIM. PRO. ANN. art. 27.02(6) (Vernon 1989). However, because appellant elected to have the trial court, instead of a jury, decide his punishment, no pretrial application for community supervision was necessary. TEX. CODE CRIM. PRO. ANN. art. 42.12(3), ' 3 (Vernon Supp. 2002). It is a discretionary decision for a judge to place an individual on community supervision when it is Ain the best interest of justice, the public, and the defendant.@ Article 42.12, section 3(a). In the punishment hearing before the court, the State established that appellant was currently under community supervision for a misdemeanor theft offense. Although appellant put on no witnesses at the punishment phase, counsel for appellant requested the court to consider community supervision for two years as punishment for the offense. The State argued that it would be a Amiscarriage of justice@ for appellant to receive community supervision and requested the trial court to sentence appellant to the maximum punishment of 2 years confinement in a state jail facility and impose a $10,000 fine. In order to show that trial counsel was ineffective, appellant must identify the acts or omissions which were not the result of reasonable, professional assistance. Strickland v. Washington, 466 U.S. 668, 696 (1984). The reviewing court must apply an objective standard of reasonableness in reviewing an ineffective assistance of counsel claim. Strickland v. Washington, supra at 690; Price v. State, 923 S.W.2d 214, 217 (Tex.App. B Eastland 1996, pet=n ref=d). An appellant making an ineffective assistance of counsel claim must show that counsel was deficient and acted outside the wide range of competent assistance and that there is a reasonable probability a different decision would have been reached in the absence of counsel=s unprofessional errors. Strickland v. Washington, supra at 690, 696; Price v. State, supra at 217. The reviewing court looks at the totality of the representation in reviewing a claim of ineffective assistance of counsel. McFarland v. State, 845 S.W.2d 824, 843 (Tex.Cr.App.1992), cert. den=d, 508 U.S. 963 (1993). Trial counsel failed to file a pretrial application for community supervision; however, an application was not required in this case. Trial counsel argued that the trial court should consider community supervision rather than state jail time. The record does not reflect that the totality of trial counsel=s representation was deficient, unreasonable, or incompetent. In addition, appellant has not shown a reasonable probability that the trial court would have made a different decision regarding his punishment in the absence of his trial counsel=s unprofessional errors. Appellant has not met the standard required to show ineffective assistance of counsel at the punishment phase of trial. The judgment of the trial court is affirmed. JIM R. WRIGHT JUSTICE March 28, 2002 Do not publish. See TEX.R.APP.P. 47.3(b). Panel consists of: Wright, J., and McCall, J., and McCloud, S.J.[1] [1]Austin McCloud, Retired Chief Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.